Freely Available British and Irish Public Legal Information
[Home] [Databases] [World Law] [Multidatabase Search] [Help] [Feedback]
Industrial Tribunals Northern Ireland Decisions
You are here: BAILII >> Databases >> Industrial Tribunals Northern Ireland Decisions >> McKeown v Belfast Metropolitan College [2014] NIIT 1750_13IT (10 September 2014)
URL: http://www.bailii.org/nie/cases/NIIT/2014/1750_13IT.html
Cite as: [2014] NIIT 1750_13IT
[New search] [Printable RTF version] [Help]
THE INDUSTRIAL TRIBUNALS
CASE REF: 1750/13
CLAIMANT: Grainne McKeown
RESPONDENT: Belfast Metropolitan College
DECISION
The decision of the tribunal is that the claimant’s claims are dismissed.
Constitution of Tribunal:
Employment Judge: Mrs Ó Murray
Members: Mr P Archer
Miss E Bailey
Appearances:
The claimant was represented by Mr P Moore of PM Associates.
The respondent was represented by Mr S Doherty, Barrister-at-Law, instructed by
J Blair Employment Law, Solicitors.
The Claim
1. The claimant claimed unfair dismissal on ordinary principles, and automatic unfair dismissal on two bases, namely on grounds of protected disclosure and on grounds of Trade Union activities. It was the respondent’s case that the claimant was dismissed fairly for gross misconduct.
The Issues
2. The issues before the tribunal at hearing were as follows:-
(1) Did the claimant convey information to the employer, a prescribed person or a Minister?
(2) Did the information tend to show one or more of the relevant failures?
(3) Did the claimant reasonably believe that the information disclosed tended to show a relevant failure?
(4) Did the claimant reasonably believe that the information and allegations were substantially true?
(5) Did the claimant lack good faith?
(6) Was the relevant failure exceptionally serious and was it reasonable for the claimant to make the disclosure in all the circumstances?
Sources of Evidence
3. The tribunal had the written statements and oral evidence and documentation from the following witnesses:-
(1) The claimant.
(2) Mr D Duffy, Director of Development and Learner Services and the Investigating Officer in the disciplinary process.
(3) Ms L Smith, the Chair of the disciplinary hearing and a member of the governing body.
(4) Mr K Smith, senior HR business partner and HR advisor to the disciplinary committee.
(5) Mr I Walters, a member of the governing body and decision-maker on appeal.
(6) Dr C Ackah, who chaired the LRA panel that dealt with the claimant’s appeal and made recommendations to the appeal body of the respondent.
The Law
Public Interest Disclosure
4. The Public Interest Disclosure (Northern Ireland) Order 1998 amended the Employment Rights (Northern Ireland) Order 1996 (‘the ERO’) and introduced provisions protecting workers from unfair dismissal because of having made protected disclosures.
5. Article 134A of ERO provides that an employee is automatically unfairly dismissed if the reason or the principal reason for the dismissal is that he has made a protected disclosure.
6. The ERO provisions engaged in this case are as follows:
“67B. (1) In this Part a ‘qualifying disclosure’ means any disclosure of information which, in the reasonable belief of the worker making the disclosure, tends to show one or more of the following –
(a) that a criminal offence has been committed, is being committed or is likely to be committed,
(b) that a person has failed, is failing or is likely to fail to comply with any legal obligation to which he is subject,
(c) that a miscarriage of justice has occurred, is occurring or is likely to occur,
...
(f) that information tending to show any matter falling within any of the preceding sub-paragraph has been, is being or is likely to be deliberately concealed.”
Disclosure to prescribed person
“67F. (1) A qualifying disclosure is made in accordance with this Article if the worker -
(a) makes the disclosure in good faith to a person prescribed by an order made by the Department for the purposes of this Article, and
(b) reasonably believes -
(i) that the relevant failure falls within any description of matters in respect of which that person is so prescribed, and
(ii) that the information disclosed, and any allegation contained in it, are substantially true.
(2) An order prescribing persons for the purposes of this Article may specify persons or descriptions of persons, and shall specify the descriptions of matters in respect of which each person, or persons of each description, is or are prescribed.”
Disclosure in other cases
“67G. (1) A qualifying disclosure is made in accordance with this Article if –
(a) the worker makes the disclosure in good faith,
(b) he reasonably believes that the information disclosed, and any allegation contained in it, are substantially true,
(c) he does not make the disclosure for purposes of personal gain,
(d) any of the conditions in paragraph (2) is met, and
(e) in all the circumstances of the case, it is reasonable for him to make the disclosure.
(2) The conditions referred to in paragraph (1)(d) are –
(a) that, at the time he makes the disclosure, the worker reasonably believes that he will be subjected to a detriment by his employer if he makes a disclosure to his employer or in accordance with Article 67F.
(b) that, in a case where no person is prescribed for the purposes of Article 67F in relation to the relevant failure, the worker reasonably believes that it is likely that evidence relating to the relevant failure will be concealed or destroyed if he makes a disclosure to his employer, or
(c) that the worker has previously made a disclosure of substantially the same information –
(i) to his employer, or
(ii) in accordance with Article 67F.
(3) In determining for the purposes of paragraph (1)(e) whether it is reasonable for the worker to make the disclosure, regard shall be had, in particular, to –
(a) the identity of the person to whom the disclosure is made,
(b) the seriousness of the relevant failure,
(c) whether the relevant failure is continuing or is likely to occur in the future,
(d) whether the disclosure is made in breach of a duty of confidentially owed by the employer to any other person,
(e) in a case falling within paragraph (2)(c)(i) or (ii), any action which the employer or the person to whom the previous disclosure in accordance with Article 67F was made has taken or might reasonably be expected to have taken as a result of the previous disclosure, and
(f) in a case falling within paragraph (2)(c)(i), whether in making the disclosure to the employer the worker complied with any procedure whose use by him was authorised by the employer.
(4) For the purposes of this Article a subsequent disclosure may be regarded as a disclosure of substantially the same information as that disclosed by a previous disclosure as mentioned in paragraph (2)(c) even though the subsequent disclosure extends to information about action taken or not taken by any person as a result of the previous disclosure.”
Disclosure of exceptionally serious failure
“67H. (1) A qualifying disclosure is made in accordance with this Article if –
(a) the worker makes the disclosure in good faith,
(b) he reasonably believes that the information disclosed, and any allegation contained in it, are substantially true,
(c) he does not make the disclosure for purposes of personal gain,
(d) the relevant failure is of an exceptionally serious nature, and
(e) in all the circumstances of the case, it is reasonable for him to make the disclosure.
(2) In determining for the purposes of paragraph (1)(e) whether it is reasonable for the worker to make the disclosure, regard shall be had, in particular, to the identity of the person to whom the disclosure is made.”
Information
7. The meaning of ‘information’ is encapsulated in the following dictum by Slade J in the Geduld case as follows:-
“Further, the ordinary meaning of giving “information” is conveying facts. In the course of the hearing before us, a hypothetical was advanced regarding communicating information about the state of a hospital. Communicating “information” would be “The wards have not been clean for the past two weeks. Yesterday, sharps were left lying around”. Contrasted with that would be a statement that “you are not complying with Health and Safety requirements”. In our view this would be an allegation not information”.
8. Mere allegations or expressions of opinion do not constitute information and are thus not protected.
Reasonable belief
9. The principles involved in assessing the reasonable belief element are outlined at Paragraph 3.25 of the text book authority namely Whistleblowing Law and Practice (2nd Edition) by Bowers Fodder Lewis and Mitchell (referred to below as Bowers). We summarise the nine principles as they relate to this case, as follows:-
(1) The test involves both a subjective test of the worker’s belief and an objective assessment of whether the belief could reasonably have been held (Babula).
(2) The worker can be wrong yet still hold a reasonable belief (Darnton).
(3) The test of reasonable belief applies to all elements of the test of whether the information disclosed tends to show a relevant failure including whether the relevant legal obligation in fact exists (Babula).
(4) Reasonableness of the belief is to be tested having regard not only to what was set out in the disclosure but also to the basis for that information and any allegation made (Darnton and Babula).
(5) What is reasonable depends on all the circumstances assessed from the perspective of the worker at the time of making the disclosure and it is for the tribunal to assess this. This may include consideration of the circumstances in which the disclosure was made, to whom the disclosure was made, the context and extent to which the worker claims to have direct knowledge of the matters disclosed and a comparison with how the worker would be expected to have behaved if he genuinely and reasonably believed in the truth of the matter disclosed and that they tended to show a relevant failure (Darnton and Others).
(6) The truth or falsity of the information disclosed and whether or not the relevant failure in fact occurred may be relevant when assessing reasonable belief (Darnton).
(7) The worker must exercise a judgement consistent with the evidence and resources available, including the expertise and seniority of the worker, their ability to investigate further, and whether it is appropriate in all the circumstances instead to refer the matter to someone else to investigate (Darnton).
(8) The standard to be applied to whether a disclosure qualifies for protection has to take into account that it is only necessary to have a reasonable belief that the information ‘tends to show’ the relevant failure, rather than that it positively establishes that failure.
(9) The burden is on the worker making the disclosure to establish the requisite reasonable belief (Babula).
(10) In this case a higher hurdle for protection under Articles 65F to 65G applies namely the claimant must show that the information disclosed and any allegations made are substantially true.
10. At paragraph 3.28 Bowers quotes guidance from the Darnton case:
“There must be more than unsubstantiated rumours in order for there to be a qualifying disclosure”
11. At Bowers at Paragraph 5.21, five points are made in relation to this aspect of the test, (ie whether the information disclosed and any allegation contained within it are substantially true) as follows:-
(1) The tribunal must look at the circumstances as the claimant understood them or ought to have understood them at the time.
(2) It must be reasonable for the claimant to believe the factual basis for the information disclosed and that the allegation was substantially true.
(3) The claimant can still be protected if he held a reasonable belief which turned out to be mistaken.
(4) All circumstances must be considered in determining whether the belief was reasonable.
(5) The worker cannot merely say that the information disclosed tends to point in the direction of a relevant failure, and needs further investigation. The worker must reasonably believe that the allegations are substantially true (Paragraph 5.21 Bowers).
12. In this case if the disclosure to NIAO were deemed to be to the employer, and important fact which is relevant to our deliberations is that it was seised of the matter. Our finding below is that the claimant jumped the gun by not waiting for them to proceed.
Good faith
13. Good faith requires consideration of the motive of the person making the disclosure. A disclosure might therefore be in bad faith, by reason of an “ulterior motive”, even though a worker reasonably believes that the information disclosed and the allegations contained in it are substantially true and that it tends to show a relevant failure.
14. An ulterior motive is a motive for the disclosure that is other than in the public interest. Examples of ulterior motives which have been held to negate good faith are: personal antagonism and pursuing a personal campaign.
15. The burden of proving that a disclosure was not made in good faith is on the employer. The standard of proof on this point is the balance of probabilities.
Unfair Dismissal
16. The right not to be unfairly dismissed is enshrined in Article 126 of ERO. At Article 130 of ERO it is stipulated that it is for the employer to show the reason for the dismissal and that the reason falls within one of the fair reasons outlined at Article 130(2). One of the potentially fair reasons for dismissal, listed at Article 130(2)(b), relates to the conduct of the employee. If the tribunal finds that the employer has dismissed for a potentially fair reason, the tribunal must then go on to consider whether the dismissal was fair or unfair in accordance with Article 130(4).
17. The task for the tribunal in a misconduct dismissal case is set out as follows by the judge in British Home Stores Ltd v Burchell 1980 ICR 303:
“What the tribunal have to decide every time is, broadly expressed, whether the employer who discharged the employee on the grounds of misconduct in question … entertained a reasonable suspicion amounting to a belief in the guilt of the employee of that misconduct at that time. That is really stating shortly and compendiously what is in fact more than one element. First of all there must be established by the employer the fact of that belief; that the employer did believe it. Secondly, that the employer had in his mind reasonable grounds upon which to sustain that belief. Thirdly, we think, that the employer, at the stage at which he formed that belief on those grounds, at any rate at the final stage at which he formed that belief on those grounds, had carried out as much investigation into the matter as was reasonable in all the circumstances of the case”.
18. The Northern Ireland Court of Appeal decision in the case of Rogan v The South Eastern Health and Social Care Trust 2009 NICA 47 endorses the Burchell approach and outlines the task for the tribunal in a misconduct dismissal case. The test is whether dismissal was within the band of reasonable responses for a reasonable employer. The tribunal must not substitute its own view for that of the employer but must assess whether the employer’s act in dismissing the employee fell outside the band of reasonable responses for a reasonable employer to adopt in the circumstances. This assessment applies to both procedure and penalty.
19. The statutory disciplinary and dismissal procedures (‘SDP') must also be followed in relation to any dismissal.
Findings of fact and conclusions
20. Both sides provided written submissions supplemented with oral submissions at hearing. The tribunal took account of all of the oral submissions and the authorities to which it was referred and considered in detail at the relevant parts of Bowers in reaching its conclusions.
21. In submissions, Mr Moore relied on Articles 67B, 67E and 67F. In relation to Article 67E which relates to disclosure to a Minister we heard very little evidence of what was allegedly disclosed. As set out below, we find that it did not amount to breach of a legal obligation or a crime. There was no reference to this matter in the DEL letter nor in the Equality Report and there was no evidence that the respondent knew of any such disclosure.
22. Mr Moore accepted, in relation to Article 67F, that a trade union is a not a prescribed person for the purposes of that part of the legislation. He referred to Mr Cole of DEL as a prescribed person for the purposes of that Article.
23. Mr Moore confirmed that he was not relying on Article 67G. The Article which was relied upon was 67H and related to disclosure to PAC, NIAO and the alleged repetition of those disclosures in the Equality Report. It was Mr Moore’s submission that the reason for dismissal was because the claimant had promulgated the Equality Report.
24. Mr Doherty submitted that the content of the Equality Report was inappropriate, it fell outside the scope of her role as a Trade Union official, it reflected her personal views and that there was no urgency requiring the claimant to put out her Equality Report when she did.
25. The tribunal considered the submissions and all the evidence both oral and documentary to find the following facts approved on a balance of probabilities. It is important to note that we do not record below all the competing evidence as the following are our primary findings of fact drawn from all the evidence put before us. The tribunal applied the legal principles to the facts found in order to reach the following conclusions.
General
26. We found the claimant’s evidence to be unreliable, unsatisfactory and surprising in several respects. For example, at hearing the claimant claimed that consultants were taken on at great expense when staff were being made compulsorily redundant. In cross-examination the claimant reluctantly accepted that the redundancy process did not involve compulsory redundancies and that all redundancies were voluntary redundancies. The claimant also made a wild allegation (which we do not accept) that the awarding of one consultant’s contract was a crime. This illustrated to us the claimant’s capacity to jump to unreasonable conclusions and her apparent lack of insight into the seriousness of making such statements in writing for dissemination. The claimant also resiled at hearing from some of the allegations of criminal behaviour by stating that they amounted to inappropriate behaviour instead.
27. The claimant did not say until the hearing before us that she had been suspended because of whistle blowing.
28. The claimant on the one hand said that she would not have sent the report in that form as it was a draft which she expected to be amended and she blamed Ms G for the dissemination of the report. On the other hand, however, she continued to stand over all the allegations during our hearing. This was a contradictory position to adopt and tainted the claimant’s evidence for us.
29. At the relevant time the claimant was employed as a lecturer by the College until she was dismissed for gross misconduct with effect from 3 July 2013. She also held the post of Equality Officer in the Trade Union Branch in the College and part of her duties involved producing an Equality Report for the Trade Union’s annual general meeting (AGM). The claimant prepared a report entitled ‘Equality Report’ which made little reference to equality issues but made scathing criticism of the alleged actions of named managers and prominent members of Northern Ireland’s society in relation, in particular, to the move to the Titanic Quarter (‘TQ’). The claimant essentially repeated rumour and gossip and used this as a basis for making very serious allegations of corruption. The claimant also made scathing criticism of the performance of the college and its alleged effect on enrolment figures and courses.
30. The claimant e-mailed her report to the branch official, Ms G, who was collating the reports from all the different branch divisions and she, without reading it disseminated it amongst all 450 Trade Union members due to attend the AGM at 9.30 am the next morning. Within one hour of it being sent, Ms G essentially disowned the report on behalf of the College Trade Union branch by recalling it by e-mail and by stating that it did not contain the views of the branch.
31. The next day, just before the AGM took place, the branch officers pressed the claimant to withdraw her nomination for the post of Equality Officer for the following year. The claimant gave evidence that she did so on the basis that she would not be supported. The upshot of this was that the claimant withdrew her candidacy because of the report. After the AGM, Ms G and another branch official visited one of the individuals named in the report to explain that the report had nothing to do with them and this was followed up by an e-mail to that individual to confirm the position.
32. An investigation by the respondent took place and the report recommended disciplinary action against the claimant.
33. The chronology is as follows:-
(1) The disciplinary investigation started on 24 July 2012.
(2) On 29 August 2012 the claimant was suspended upon her return from holiday.
(3) Investigatory interviews with the claimant took place on 3 September 2012 and 18 October 2012.
(4) The investigatory report was sent to the claimant on 7 January 2013.
(5) The disciplinary hearing was on 19 February 2013.
(6) On 28 February 2013 the outcome letter was sent to the claimant.
(7) On 1 March 2013 the decision to dismiss was communicated in a letter from the Chair of the Governing Body.
(8) The claimant appealed to an independent appeal panel and their hearing took place on 7 June 2013.
(9) In June 2013 that panel made recommendations to the respondent in their report.
(10) On 5 July 2013 the respondent’s letter confirmed the claimant’s dismissal with effect from 3 July 2013.
34. Essentially, the employer’s first problem with the report was that the claimant had authored a report containing serious and potentially libellous allegations against several named individuals without any evidence to substantiate the allegations.
35. The second element of the actions of the claimant which were problematic for the respondent was that she had produced the report and issued it through the college’s e-mail system, with the intention of disseminating it to over 400 of the College’s Trade Union members of staff.
36. The two disciplinary charges levelled against the claimant were as follows:-
“That Ms McKeown authored an Equality Report which contains serious and potentially libellous allegations against former and present senior members of staff and individuals including an MLA, a former director, the current Principal and Chief Executive, the Interim Head of HR, members of staff of a Professional Accountancy firm and the Head of Leadership and Development within the College. The investigation has demonstrated that at the time of authoring her report Ms McKeown failed to provide any evidence to substantiate the allegations. Furthermore during the course of the investigation Ms McKeown failed to provide any evidence to substantiate the allegations.
That Ms McKeown used her official position as an Equality Officer within UCU and provided this document for distribution via the College’s email system to all UCU Belfast Metropolitan College members of which the College believes there are approximately 415.”
37. The disciplinary panel outcome was that the actions of the claimant amounted to gross misconduct as she was attempting through the content of her report to bring the College into disrepute and she failed to understand the gravity of her conduct. They found the claimant’s actions to amount to a breach of trust and confidence and breach of contract. They did not find against the claimant in relation to part of the second allegation namely the charge relating to the use of the College’s e-mail system to disseminate the material
38. It was clear to us that the College felt very keenly that there was a danger that they could be drawn into defamation proceedings. This fear appears to have been shared by the members of the Trade Union branch who sought to distance themselves as much as they possibly could from the allegations.
39. We assessed the claimant as someone who seemed utterly driven by her unshakable conviction that the respondent organisation was being run corruptly and that corruption was being engaged in by managers and by other named individuals relating to the running of the College. However, on her own account, the claimant had no evidence for her assertions other than allegations from an unnamed source and rumour and gossip. We find that the claimant was pursuing a personal campaign in relation to her personal beliefs and in relation to the move to TQ in particular.
40. Throughout the disciplinary process the claimant did not provide any evidence to back up her allegations nor did she give the name of her source despite being asked to do so. It seems that she believed that, because she described herself as a whistleblower, she could make such allegations with impunity.
Alleged protected disclosures
41. The relevant failures relied upon in this case were:-
(i) criminal offence;
(ii) breach of a legal obligation;
(iii) miscarriage of justice; and
(iv) the deliberate concealment of information about any of the above.
42. We heard no evidence in relation to alleged deliberate concealment and find that part of the legislation is therefore irrelevant to this case. There was no evidence of any miscarriage of justice and that was also irrelevant to the case. The only parts of the legislation engaged in this case therefore related to crime and breach of a legal obligation.
43. Whilst in the issues document compiled by the parties prior to the hearing there was reference to disclosures made to MLAs, MPs and the DEL Minister, we heard no evidence in relation to any such alleged disclosures, save for a reference in the statement to raising concerns about the College’s enrolment process, with the Minister. We find that this did not amount to a protected disclosure as it did not relate to any of the relevant failures, and no evidence was produced to us to indicate that any issues with enrolment procedures breached any legal obligation.
44. The only evidence we heard was in relation to alleged disclosures to the chair of the Public Accounts Committee (‘PAC’) in April 2012 and subsequently to the Northern Ireland Accounts Committee (‘NIAO’). The DEL letter from Mr Cole deals with the claimant’s NIAO referral. It is apparent from the DEL letter that the issues referred to in the Equality Report were not identical to those which were referred to NIAO. At no point did we see a copy of the claimant’s referral to NIAO.
45. Given the nature of the alleged protected disclosures, we do not intend to repeat them in detail as they are referred to in the DEL letter and are contained in the claimant's Equality Report. We summarise them and record our findings and conclusions below.
The £22m issue
46. The £22m ‘deficit’ related to the fact that the college was at one point £17m in the black and then found itself £5m in the red a period later. £22m related to what DEL termed: “serious weaknesses in financial management and control systems” in the College and they noted that the background to the deficit went back to 2006/07. It was common case that this was the state of the College’s finances and that this was the subject of an efficiency report and remedial action. We find that the communication of the fact of the deficit therefore amounted to a disclosure of information but is not protected because the claimant did not reasonably believe that it tended to show a relevant failure as she relied on her own unreasonable supposition that it must connote fraud.
47. The claimant relied on the exceptionally serious failure provisions (A65H) in relation to the £22m allegation only. We do not find that the alleged disclosure related to an exceptionally serious failure. The information disclosed (the fact of the £22m deficit) did not tend to show fraud or breach of a legal obligation. The claimant did not reasonably believe her allegation (that this must connote fraud) to be substantially true as she relied merely on her own supposition. In addition, in circumstances where the NIAO were seised of the matter the claimant was not justified in disclosing to her Trade Union official, with the intention of wider dissemination, without waiting for the NIAO to progress with the matter.
That senior managers of the respondent were also Directors or Governors of another organisation and that work was done for that organisation for free
48. The claimant accepted that the first allegation was not true and conceded that she did not believe it to be true at the time. Nevertheless it appeared in her Equality Report. We find that whilst it was a disclosure of information the claimant did not have a reasonable basis upon which to found her allegation and she neither subjectively nor reasonably believed that the allegations and information contained in them were substantially true.
49. In relation to the alleged free work, the claimant conceded throughout that she had nothing to base this on except the alleged word of an unnamed member of staff. The respondent’s position throughout was that the two organisations had a close contractual and working relationship whereby the College received fees from the body and provided some services in return. It was not reasonable for the claimant to characterise any services provided as a crime particularly as she took no steps to try to verify if free services had in fact been provided.
The car parking issue
50. We find that this did not amount to information but was an allegation and/or an expression of the claimant’s opinion. The claimant made connections and drew unreasonable conclusions based on gossip and conjecture.
The consultant doing her own work issue
51. We find that there was no reasonable basis for the claimant to make this allegation and it lacked enough specifics to enable it to amount to information. It therefore amounted to no more than a bare allegation which was based on gossip. We further find that the claimant did not reasonably believe that it tended to show breach of a legal obligation or crime nor did she reasonably believe that it was substantially true.
The issue of the relationship between the respondent and a consultancy firm
52. We find that this was an allegation and/or expression of opinion based on gossip and conjecture. There was no communication of information.
The IT Consultants issue
53. The claimant’s allegation was that two individuals lacked an IT background and she based this on gossip and her research into their “Linked-in” profile on the internet. We find that it fell short of communicating information. Even if it was information it did not tend to show a breach of a legal obligation or a crime and it therefore did not amount to a qualifying disclosure. When this point was raised specifically by the claimant during the disciplinary process the employer took steps to establish the position and concluded that the consultants had been appointed following an open procurement exercise and there was no reason to doubt the validity of their appointments. The claimant did not seek to deny the respondent’s points about the procurement process. We further find that the claimant did not reasonably believe that her allegation was substantially true because she had so little basis for making it given that she based this on gossip and her supposition following an internet search.
The branch closure issue
54. We find that this amounted to a mere allegation and expression of opinion as it related to the claimant’s fear of closure based on the fact that, for example, some courses were being moved to a different location. Even if it (ie that courses were being reduced) amounted to the communication of information, we find that it did not tend to show a breach of a legal obligation or a crime. The height of the claimant’s case on this was that there was a general obligation to use resources appropriately to obtain value for money. Further, we find that the claimant did not reasonably believe that her allegation was substantially true as it was based on her suspicions.
The statistics issue
55. This issue related to enrolment figures and the respondent's performance. We find that this amounted to information which was communicated but that it did not tend to show a breach of a legal obligation or crime. It related to the running of the College and, at its height, amounted to criticism of senior managers’ decisions.
Disclosure to authorised bodies (A67F)
56. As it was uncontested, we proceeded on the basis that PAC and NIAO were on a list of authorised bodies for the purposes of the protected disclosure provisions. There was no copy before us of what the claimant had actually disclosed to the PAC or the NIAO. At its height, the claimant’s case was that her disclosure to them was largely the same as that which was in her Equality Report. They did not amount to qualifying disclosures for the reasons set out above.
Disclosure to a third party (A65G)
57. Mr Moore in submissions disavowed reliance on this part of the provisions. The wider disclosure provisions are not applicable because the claimant did not disclose to her employer first and Mr Moore accepted that that was the position. We note that the policy provides:-
“8 External disclosures
Although this policy seeks to reassure staff that concerns raised will be taken seriously and treated in confidence, the College recognise that there may be circumstances where it is proper to report a concern to an outside body which could be an appropriate regulator – such as the Northern Ireland Audit Office or the Health and Safety Executive of Northern Ireland. Public Concern at Work (or a trade union) can advise on such an option and the circumstances in which it is appropriate to contact an outside body safely. A list of all external bodies who can deal with whistleblowing complaints can be found in Appendix 1 of the Department of Employment and Learning’s web publication Guide to the Public Interest Disclosure (Northern Ireland) Order 1998 (www.delni.gov.uk/guide-to-the-public-interest-disclosure-ni-order-1998).”
58. Under Article 67C(2), if an employee discloses to someone other than the employer under an authorised procedure it is effectively deemed to be a disclosure to the employer.
59. The claimant did not seek to rely on this provision although we were directed to the existence of the policy generally. Even if the claimant’s disclosure to NIAO is deemed to be to the employer the claimant’s claim fails on other grounds, as set out in this decision.
60. Under Article 67G are set out potential reasons for not disclosing to the employer first, namely that the claimant feared that she would be subjected to a detriment; and, secondly, that evidence was likely to be concealed or destroyed. We heard no evidence on either of these points.
Good Faith
61. On the good faith issue the burden is on the respondent to prove good faith on a balance of probabilities. We find that the claimant was essentially pursuing a personal campaign using her equality report unreasonably as a vehicle to pursue that campaign. We therefore find that her actions are deprived of good faith and are thus not protected.
Automatic Unfair Dismissal – Protected Disclosure
62. If one or more of the disclosures had been qualifying disclosures the issue for us is whether the claimant was dismissed because she made any disclosures to the PAC, NIAO or in her Report or, was it in fact because of gross misconduct. In this regard the respondent's knowledge or lack of knowledge of the claimant's acts at different times is important in relation to both the protected disclosure issue and to unfair dismissal on ordinary principles.
63. On the knowledge issue it was the claimant’s case that she believed that senior managers were aware of her name from June 2012, if not earlier. In support of this, she relied on a letter from DEL dated 14 September 2013 when Mr Cole of DEL states that he received the NIAO referral on 15 August 2013 and he then sought advice from senior managers in the respondent. On the claimant’s own evidence therefore the earliest that managers could have been aware that she was the person who had raised concerns with anyone was after 15 August 2013.
64. However, by that stage, it was already clear how grave the respondent’s concerns were in relation firstly, to the contents of the equality report and, secondly, to the claimant’s actions in authoring it with a view to dissemination. The respondent clearly viewed the matter as potential gross misconduct from the outset of the disciplinary investigation which started on 24 July 2012. The fact that the claimant’s name as the whistleblower came to the respondent’s managers’ knowledge did not taint the decision to dismiss.
65. We further find that the LRA panel were not motivated to uphold the decision to dismiss because the claimant was the whistleblower. The LRA panel clearly viewed the matter as very serious indeed given the nature of the allegations contained in the report and their recommendation to the decision-makers was therefore reasonable.
66. We cannot understand why the claimant did not specifically discuss the content of her report with the rest of the Trade Union branch given the nature of it. We do not accept the claimant’s assertion to us that it was up to Ms G to amend the report or to get back to her. It was clear to us that the claimant expected the report to be disseminated at the AGM given, firstly, the wording in the email; secondly, that it was not marked or referred to as a draft; and, thirdly, that it was sent late in the afternoon before a meeting at 9.30 am on the next day. We find that the employer was reasonable not to accept the claimant’s argument on this point. We also find that this supports our finding that the claimant was acting as an individual in relation to her report.
67. The respondent did not discipline the claimant because she had made the disclosures to PAC or NIAO because of the lack of knowledge at the relevant time ie when the disciplinary process began in July 2012. We find this lack of knowledge to be evidence supporting the respondent’s case that they regarded the claimant’s actions as potential misconduct because of the potentially libellous comments contained in the Equality Report and also because the matters contained in that report were likely to bring the College into disrepute. Our findings on the respondent’s knowledge detract from the claimant’s case that the respondent set out to dismiss her because of their displeasure at her referring her concerns to PAC and NIAO.
68. We must identify the principal reason for the dismissal. We find that reason to be gross misconduct because of the authoring of the report with its potentially libellous content with the intention of dissemination at the Trade Union AGM. We do not accept that there was the requisite connection between the alleged disclosures to PAC and NIAO and the decision to dismiss.
Automatic Unfair Dismissal – Trade Union activities
69. For the respondent, Mr Doherty argued that the claimant’s actions fell outside the scope of TU activities and he referred in detail to two authorities in relation to the Trade Union activities point, namely, F M Lyon and M A Scherk v St James Press Ltd [1976] IRLR 215 and Bass Taverns Ltd v Burgess [1995] IRLR 596.
70. The following relevant guidance can be derived from those authorities in relation to the meaning of the phrase: ‘activities of an independent trade union’:-
(1) The phrase should not be interpreted restrictively but should be interpreted reasonably;
(2) In Lyon, Phillips J said of the provisions:-
“The special protection afforded by para. 6(4) to trade union activities must not be allowed to operate as a cloak or an excuse for conduct which ordinarily would justify dismissal; equally, the right to take part in the affairs of a trade union must not be obstructed by too easily finding acts done for that purpose to be a justification for dismissal. The marks are easy to describe, but the channel between them is difficult to navigate.” (Paragraph 16.);
(3) In the case of Bass Taverns, Lord Justice Pill of the Court of Appeal stated as follows:-
“I find nothing beyond the rhetoric and hyperbole which might be expected at a recruiting meeting for a trade union or, for that matter, some other organisation or cause. Neither dishonesty nor bad faith are suggested. (Para 12)
...
I would add that in dealing with the facts of this case, I am very far from saying that the contents of a speech made at a trade union recruiting meeting, however malicious, untruthful or irrelevant to the task in hand may be, come within the term ‘trade union activities’... .” (Paragraph 14) [emphasis added].”
71. We find that the matters raised by the claimant were irrelevant to the task in hand and display her crusading zeal in making her beliefs known.
72. The first issue is whether the claimant’s action in putting that content in her Equality report with the intention of wider dissemination was outside the scope of Trade Union activities.
73. It is our view that the content of the Equality Report with a view to dissemination crossed a line taking it outside the scope of Trade Union activities. Our principal reasons for so finding are as follows:-
(1) The Trade Union reaction in that Ms G withdrew the report almost immediately and the TU branch members sought to distance themselves from it going so far as to apologise to one of the impugned individuals.
(2) That it was following pressure from the TU branch about the content of the report that the claimant withdrew her candidacy at the AGM.
(3) We find that this was really a personal campaign on her part. The content of the report was not a fair Equality Report and this was clearly the view of the claimant’s own Trade Union colleagues and was the view of the LRA panel one of whom was a senior Trade Unionist.
74. It is clear from the legal authorities that a claimant cannot use the protection afforded to those engaged in Trade Union activities as a cloak to make a personal stand or pursue a personal crusade. In this case there were inflammatory allegations made against named individuals based solely on gossip and on rumour and on the claimant’s unreasonable inferences drawn from those rumours. It is our view that the claimant was essentially using the Equality Report as a vehicle to air her own personal issues which related to her unhappiness at the move to TQ and her unhappiness at the way the College was being run by its senior managers. The claimant very strongly disagreed with the way the managers were running the College and with the decision to move to TQ but she unreasonably made a leap to allegations of corruption based on little more than gossip and unreasonable supposition.
75. The respondent raised an issue in relation to whether or not the claimant was a Trade Union official at the time of the alleged detrimental acts. The claimant’s case on Trade Union activities fails on other grounds but it is our view that the issue raised by the respondent on this matter is beside the point. If we had found that the claimant was engaged in Trade Union activities at the relevant time and that her dismissal was connected to those activities in the requisite way, the fact that the claimant was not a Trade Union official at the time she was dismissed would have been irrelevant. The issue is the causal connection between the alleged detriment or dismissal and the Trade Union activities.
Unfair dismissal
76. Aside from the claims of automatic unfair dismissal, the claimant's case on ‘ordinary’ unfair dismissal was, firstly, that there was a defect in procedure because the claimant was not allowed to produce evidence during the disciplinary process and, secondly, that she was penalised when Ms G was not disciplined at all. The latter point was not a specific part of the claimant’s case until the case unfolded in tribunal.
77. The burden is on the respondent to prove the reason for dismissal and then it is a neutral burden on the issue of whether the dismissal was fair or unfair.
78. A key point for the respondent was their belief that the claimant disclosed the matter with the intention of wider circulation despite the fact that she was making very serious allegations against named individuals. The claimant agreed in the disciplinary process that she should not have named individuals for wider circulation but blamed Ms G for disseminating the report in that form. We find that it was disingenuous of the claimant to maintain that it was for Ms G to amend the report before it was sent out when it is clear to us that the onus was on the claimant as author of the report to discuss it with Ms G.
79. The decision not to pursue Ms G was in our estimation (insofar as we need to decide that) within the band of reasonable responses because the respondent had reasonable grounds to determine that she had innocently disseminated the report, and that she took urgent steps to recall it and to distance the Trade Union. The respondent also relied on Ms G’s responses at interview and relied on the wider circumstances where the Trade Union clearly wanted to distance itself from both the claimant’s action and the content of her report. In this case we find that any action or inaction in relation to Ms G had no bearing on the assessment of whether the claimant was treated unfairly.
80. The evidence which the claimant claimed she was prevented from producing related, in the main, to statistics on student numbers and the respondent's performance. We do not find that relevant to the charges against her which related to her allegations which the claimant based on gossip and unreasonable supposition.
81. We find that the LRA panel weighed up the matter fairly and their conclusions were reasonable. The consequent decision of the respondent to uphold the decision to dismiss was reasonable.
82. The respondent complied with the SDP.
83. We find that the procedure and penalty were within the band of reasonable responses for a reasonable employer in the circumstances.
Summary
84. We reject the claim of automatic unfair dismissal on grounds of protected disclosure on the following grounds:-
(1) Several of the alleged disclosures were not protected disclosures because they amounted to mere allegations or expressions of opinion rather than information. Any information which was communicated in the other alleged disclosures did not tend to show a relevant failure and also the claimant did not reasonably believe any information or allegations were substantially true.
(2) The claimant does not surmount the initial hurdle in relation to wider disclosure because she did not disclose to her employer first. Aside from that, we do not find the claimant justified in making a wider disclosure in all the circumstances to a Trade Union official.
(3) The £22m issue did not relate to an exceptionally serious failure and neither did it warrant wider disclosure when NIAO was seised of the matter.
85. Producing a report of that nature for wider dissemination, did not amount to a Trade Union activity in the circumstances of this case. The dismissal did not therefore amount to automatically unfair dismissal in relation to Trade Union activities because the acts committed by the claimant which led to her dismissal did not constitute Trade Union activities.
86. We do not find the dismissal unfair on ordinary principles as the respondent has shown that the reason for the dismissal was gross misconduct. We further find that the decision to dismiss, which was confirmed after the LRA panel’s assessment and recommendation, was fair in all the circumstances.
87. The claimant’s claims are therefore dismissed in their entirety.
Employment Judge:
Date and place of hearing: 23-27 June 2014, Belfast.
Date decision recorded in register and issued to parties: